WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2016-08-09

Court File No.: Toronto CFO 13 10445

Between:

Catholic Children's Aid Society of Toronto, Applicant,

— AND —

G.C. and J.C. Respondents.

Before: Justice E.B. Murray

Reasons for Judgment released on: August 9, 2016

Counsel

• Ms. Mei Chen — counsel for the applicant society
• Ms. Tammy Law — counsel for the respondent mother
• Mr. Ian McCuaig — agent for the respondent father

Decision

MURRAY, E.B. J.:

Introduction

[1] This is my decision on a claim for costs by the Respondent parents against the Catholic Children's Aid Society of Toronto with respect to a trial in which I gave judgment on June 17, 2016. Their claims are opposed by the Society.

[2] Father, G.C., claims costs in an amount of $24,675.93. Mother, J.C., claims costs in an amount of $24,733.18.

Background

[3] The trial took place over 8 days. The parties agreed long prior to trial to a finding that the children were in need of protection because they were at risk of sexual abuse by Father. Prior to the children's birth Father had pled guilty to sexual assault of and sexual interference with Mother's 7 year-old sister. He had served his sentence, completed probation, and completed sex offender treatment. He was diagnosed by a psychiatrist at CAMH as suffering from pedohebephilia, a sexual attraction to pubescent and prepubescent children.

[4] By trial the parties also agreed that Father's contact with the children, who are 3 and 6 years old, should be supervised by someone who has an appreciation of his diagnosis and the risk posed by that diagnosis.

[5] In its protection application, the Society sought an order placing the children in Mother's care pursuant to Society supervision, and an order that Father not be allowed in the family home and that he have access to the children supervised by a person other than Mother, who was approved by the Society.

[6] A temporary order had provided that the children could stay in their parents' care subject to Society supervision. The conditions included the following terms:

• that Father's contact with the children was to be fully supervised by Mother, or another person fully aware of his diagnosis;
• that Father continue treatment with his psychiatrist, Dr. Scott Woodside, and cooperate in taking medication to reduce his sex drive;
• that Father not sleep in the family home at night.

[7] At trial, the Society sought the order requested in its original protection application.

[8] The parents sought an order that in most respects duplicated the temporary order, with two exceptions—exceptions based on recommendations made by an expert retained by them, Dr. Julian Gojer. They asked that Father follow the treatment plan developed by him with a psychiatrist who is experienced in the management of child sexual offenders, with no a priori requirement that that plan must include the use of sex-drive reducing medication. They also asked that Father be permitted to reside in the family home full time once the family had completed certain work and programming recommended by Dr. Gojer.

[9] At trial I heard from both Drs. Woodside and Gojer as well as others involved in Father's treatment, Society workers, the parents, and their supports.

[10] The order I made was the order requested by the parents, with one exception. I left open for consideration the issue of whether Father could return to live full time in the family home after completion of the work recommended by Dr. Gojer.

[11] Mother had served an offer to settle 9 days before the commencement of trial in which she proposed a final supervisory order for 12 months that reflected the terms of the temporary order. Neither the Society nor Father served an offer to settle.

The Law

[12] Section 131 of the Courts of Justice Act gives a court the discretion to award costs in a proceeding, subject to the provision of an Act or the rules of the court.

[13] Although the Family Law Rules have a presumption that a successful party is entitled to costs, that presumption does not apply in a child protection case or as against a government agency. Rule 24(3) provides that the court has discretion to award costs "to or against a party that is a government agency, whether it is successful or unsuccessful".

[14] Rule 18 (14-16) deals with the cost consequences of offers to settle.

Consequences of Failure to Accept Offer

(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

• 1. If the offer relates to a motion, it is made at least one day before the motion date.
• 2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
• 3. The offer does not expire and is not withdrawn before the hearing starts.
• 4. The offer is not accepted.
• 5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

Costs Consequences — Burden of Proof

(15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14).

Costs — Discretion of Court

(16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply.

[15] In Children's Aid Society of Ottawa v. S.P., the Divisional Court made clear the policy reason for special treatment of protection cases in rules concerning costs.

"The rationale for making child protection cases an exception to the presumptive entitlement to costs stems from the fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations".

[16] Courts have awarded costs against a society in a protection case, not because of lack of success but to hold the society accountable if it falls markedly short of its responsibilities under the Child and Family Services Act. Those responsibilities include the obligation to conduct a professional investigation of alleged protection concerns and to reassess its position as more information becomes available.

It is accepted that costs can and should be awarded against a society if "a reasonable person would have perceived the society as having acted unfairly and unreasonably in its conduct…Costs may be awarded against a society on this basis, even absent a finding of bad faith".

[17] In Children's Aid Society of Hamilton v. K.L. and T.M., 2014 ONSC 3679, Justice Deborah Chappel set out general principles which apply when there is a claim for costs against a society.

1. Child protection agencies do not enjoy immunity from a costs award.

2. However, the starting point in analyzing a claim for costs against a child protection agency is that child welfare professionals should not be penalized for carrying out their statutory obligation to protect children.

3. The approach to costs as against child welfare agencies must balance the importance of encouraging child protection professionals to err on the side of protecting children and the need to ensure that those professionals exercise good faith, due diligence and reason in carrying out their statutory mandate.

4. The high threshold of "bad faith" is not the standard by which to determine a claim for costs against a child protection agency.

5. Costs will generally only be awarded against a Children's Aid Society in circumstances where the public at large would perceive that the Society has acted in a patently unfair and indefensible manner.

6. A Society should not be sanctioned through costs for an error in judgment, or in cases where the nature of the case makes it very difficult to weigh and balance the evidence and predict the legal outcome.

7. Important factors to consider in deciding whether costs against a Society are appropriate include the following:

   i. Has the Society conducted a thorough investigation of the issues in question?

   ii. Has the Society remained open minded about possible versions of relevant events?

   iii. Has the Society reassessed its position as more information became available?

   iv. Has the Society been respectful of the rights and dignity of the children and parents involved in the case?

   v. In cases involving procedural impropriety on the part of a Society, the level of protection from costs may be lower if the irregularity is not clearly attributable to the Society's efforts to diligently carry out its statutory mandate of protecting children.

[18] Many of the decisions in which costs were awarded against the Society involve circumstances in which the court finds that a child is not in need of protection, as alleged, and finds that the Society has made a grossly inadequate investigation. It appears to be rare that costs are awarded against a Society because it has not sufficiently considered the many factors relevant to disposition after a finding has been made. However, there are such cases. For example, in Children's Aid Society of Brant v. D.M.C., Justice Marjoh Agro awarded costs against a Society which relied upon an inadequate and outdated parenting capacity assessment.

[19] Offers to settle are seldom used in protection cases. In Children's Aid Society of Hamilton v. S.R., 2003 O.J. 328 (S.C.), Justice Genesee considered a claim for costs by a mother in a case in which the protection application was dismissed, in which the mother had submitted a Rule 18 offer with a result that was more favourable to the Society than the decision of the court. Justice Genesee found that despite the "near automatic" cost consequences flowing from Rule 18(14), that in protection cases the court should be especially mindful of the rationale behind Rule 24(2)—that the prospect of costs should not restrain an agency from fulfilling its statutory mandate with respect to children who may be in need of protection.

Argument

[20] In this case each of the parents concede that the Society acted reasonably in commencing a protection application. They submit, however, that the Society acted unreasonably and unfairly in several respects:

• The Society failed to reassess its position as the case developed and additional information was received. For example, the fact that the family had not breached the terms of supervision imposed in the temporary order over a period of almost 3 years was not taken into account by the Society in formulating its position at trial.

• The Society relied on speculation not borne out by the evidence of its workers or of the expert on whom it relied.

• The Society did not make sufficient effort to investigate the plan presented by the parents to allow Father to remain in the home. The Society did not take efforts to obtain information about how other agencies or even other teams within their own agency had worked with families in a situation similar to the family.

• The Society's own plan for the family was unclear, not understood by its own workers.

[21] The Society submits that it did not act in a manner in which the ordinary person would find unfair. Counsel says that the Society did consider new information as the case developed, but that Mother's reliability as a supervisor was questionable based on statements she had made to workers, and not clarified until her trial testimony. Counsel argues that the Society acted reasonably in relying upon the opinion of Dr. Woodside, and the fact that the court did not agree with the Society's position does not mean that it was "patently unfair" in its conduct of the case.

Analysis

[22] I agree with many of the parents' criticisms of the manner in which the Society conducted its case. The Society's position, that Father's contact with the children had to be supervised at all times by someone other than Mother, did not change over the course of the case, despite evidence of the parents' compliance with supervisory terms from its own workers. Although the workers on this team had no experience in working with a family in which a father had a record of child sexual abuse but in which the parents wished to stay together, the Society made no effort to connect the workers with others who had this experience, some of whom worked within the agency on different teams. The team supervisor had a mistaken belief that child sexual offenders are likely to re-offend, contrary to the evidence of the expert it consulted.

[23] Despite these findings, this is not a case in which a reasonable person would find the Society acted unreasonably or indefensibly in taking the matter to trial.

[24] I say that for two reasons:

1. Expert Opinion

This was a case in which expert opinion played a critical role. The opinions dealt with the likelihood of Father re-offending and the optimal management/treatment plan for Father. Although both experts agreed that Father's contact with the children should continue to be supervised, they had different opinions about the likelihood of him reoffending, and the best management plan.

Although I preferred Dr. Gojer's opinion on these issues, I cannot say that the Society was unreasonable in relying upon the opinion of Dr. Woodside. He is a well-qualified expert who gave a careful opinion. In addition, I note that Dr. Gojer's report was rendered and served on the Society less than one week before the commencement of trial. The Society had very little time to review and consider his report.

2. Mother's Reliability as Supervisor

Mother had made statements which caused the Society to question her recognition of the fact that Father posed a risk to the children and needed continued supervision. Based on all the evidence at trial, including evidence as to Mother's historical difficulties with receptive and expressive language, I concluded that she was an appropriate supervisor. Even though I reached this conclusion, I do not find it unreasonable that the Society needed to hear an examination and cross-examination of Mother on this issue.

[25] There are some issues which require a trial. This case involved such issues. I do not find that the Society acted unreasonably in bringing the matter to trial. Despite the fact that Mother submitted an offer which qualifies as an offer under Rule 18(14) for an order of costs in her favour, I find that no costs should be ordered.

Released: August 9, 2016

"Signed: Justice E.B. Murray"